Justice Kennedy and the Strip-Searchers

What does the Supreme Court know about naked bodies? What is more important, according to a five-four decision Monday, is what the Justices think a law-enforcement officer might learn from strip-searching anyone who has been taken into their custody for any reason at all. Justice Anthony Kennedy, writing for the majority, noted that “jails can be even more dangerous than prisons because officials there know so little about the people they admit at the outset”—since jail is where you go before you’ve been convicted, or even charged, they don’t know whether you’re innocent. In the case at hand, the question was whether a person could be strip-searched after being brought in for a very minor offense having nothing to do with drugs or violence, after having given no other cause for suspicion. The term “strip search,” Kennedy wrote, “is imprecise,” encompassing an order to flip one’s hair. But at the first jail the petitioner went to, in New Jersey,

Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. (It is not clear whether this last step was part of the normal practice. See ibid.)…

When petitioner was transferred [to a second jail], all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.… Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position as part of the process.

Why? Because, Kennedy said, of contraband; because he might have wounds that needed treating or a disease he might spread; and because prison violence provided “a reasonable basis to justify a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process.” He said that the Court couldn’t presume to know how to spot or weigh these things better than the people running our prisons could—an odd admission after a week in which certain Justices have seemed sure of themselves to a fault.

That all might be more persuasive if not for a number that Kennedy mentions in his opinion: “Jails (in the stricter sense of the term, excluding prison facilities) admit more than 13 million inmates a year.” If jails are such a dangerous morass, the sort of place one can’t enter without a squatting ritual, why are we sending so many millions there, and for what? (And what does that say about prisons?) The petitioner in this case was arrested on a bench warrant for supposedly not paying a fine that had, in fact, been paid. (“For some unexplained reason, the warrant remained in a statewide computer database.”) As Adam Gopnik wrote in a recent essay in The New Yorker, something has gone very awry for so many people in our country to be, one way or the other, locked up.

Justice Kennedy is not bothered by that. He mentions that one of the 9/11 hijackers got a speeding ticket, though not how strip-searching him might have stopped the attacks, or how many millions of speeders you need to sort through to find a terrorist. Never mind, Kennedy writes: “People detained for minor offenses can turn out to be the most devious and dangerous criminals.”

Illustration by Barry Blitt.

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